CITATION: R. v. M.D.T., 2016 ONSC 1357
OSHAWA COURT FILE NO.: 13691/14
DATE: February 25, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
M.D.T.
Defendant
Kristen Pollock, for the Crown
J. Paul Affleck, for the Defendant
HEARD: November 30, 2015
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published
REASONS FOR SENTENCE
Mckelvey J.:
Overview
[1] The defendant, M.D.T., was charged with a series of offences. The allegations related to physical and sexual abuse of his daughter, F.T. and his son, J.F.T. At trial, he was found not guilty of all charges involving sexual and physical abuse of his son. He was found guilty on Count 1 of indecent assault under s.149 of the Criminal Code, RSC 1985, c C-46. This incident occurred sometime between 1978 and January of 1980 when F.T. was between 7 and 9 years old. Based on the evidence at trial, I was also satisfied that a second offence of sexual assault occurred in around 1983. However, due to a defect in the drafting of the indictment, the Crown was not able to establish beyond a reasonable doubt that the defendant’s actions took place during the time period covered by the indictment. As a result, the defendant was found not guilty of the sexual assault charge. The defendant, therefore, comes before the court for sentencing on only the conviction for indecent assault, which consisted of fondling and digital penetration of his daughter’s vagina.
Position of the Crown and the Defendant
[2] The Crown seeks to rely upon my finding that there were, at least, two instances of serious sexual abuse by the defendant. The Crown suggests that the appropriate range of sentence for a case such as this is between six months and four years custody. The Crown seeks a sentence of eighteen months custody to be followed by two years’ probation. The Crown also seeks a number of ancillary orders pursuant to the Criminal Code.
[3] The defence seeks a conditional sentence and submits that this is one of those rare cases where a conditional sentence can accommodate the need for general deterrence and denunciation.
Circumstances of the Offender
[4] A presentence report has been prepared in this case. This report indicates that the defendant is 68 years of age. He is a first time offender. The defendant was married to V.T in 1968. Together they had four children, including the complainant, F.T., who was born in 1971.
[5] The defendant was involved in a motor vehicle accident in May, 1987, where he incurred injuries that continue to plague him today. These include back and shoulder pain. In addition, it is suggested that the defendant suffered a brain injury, resulting in significant cognitive impairment, massive headaches, memory loss, inability to multitask, constant fatigue and impaired judgment.
[6] It is apparent that the motor vehicle accident in May of 1987 has no bearing on the offence committed by M.D.T., which occurred well prior to his motor vehicle accident.
[7] The allegations of sexual abuse initially surfaced at a family get together on Christmas Eve in 1998. As a result, the defendant separated from his wife and family. A divorce was finalized in 2000.
[8] M.D.T. has a number of additional health issues. Together with his back and shoulder pain, he has bad knees, requiring the occasional use of a cane. He has Type 2 Diabetes and has neuropathy in both feet. He reports having an enlarged prostate, causing frequent urination. He has also been using a CPAP machine for eighteen years.
[9] The presentence report indicates that M.D.T. accepts “limited” responsibility for his actions. This is reflected by comments in the report which indicate that without providing a direct defence for mistakes made, M.D.T. has stated that he felt other family members had “bonded together” and, over time, their joint recollection of events is more akin to a “mythos” that negatively exaggerated his character and was “not necessarily representative of the truth as he recalls it”.
[10] There is evidence that M.D.T. has tried to make amends with his daughter. At trial, F.T. testified that in her late 20s, after the family confrontation, her father called her to apologize for having hurt her and to tell her that if she wanted to seek therapy or go through some other process, that he would support that. He also told her that he was sorry for having hurt her.
Impact on the Victim and the Community
[11] No victim impact statement was filed by F.T. However, she was asked in cross-examination at trial about her evidence that she tried to push away the memories of the abuse she suffered. In responding to these questions, F.T. testified,
So, and I’m sorry because I know you are trying to get someplace. I am not sure where you’re trying to go, but have you ever had a tooth abscess? And I hope not because they are terribly painful. Your tongue goes and it pokes it and it hurts and your tongue retreats, and it pokes it again and it hurts and your tongue goes away and you can’t help but poke it, but God, you don’t want to go there. And so yes, I made a decision to stop pushing these memories away because they keep fighting me back. I have to tell you, not a day goes by and I don’t have to at least push them away once or twice. Not a day. Have I made an intentional decision to try and live my life and minimize the impact? Yes, but I don’t pour over them. I am not looking to crystalize them. I am not actively repressing them, I am not pretending they didn’t happen, I am not wishing desperately that I had a childhood that I didn’t have, but no. Even though I am going through this and have gone through it, I am not revisiting them. I am not playing them out in my mind. I am poking them, and then my tongue retreats away because it’s an abscess and it hurts.
[12] In the reasons for judgment, I noted that F.T. was a credible and reliable witness. I had no hesitation in accepting her evidence with respect to the charges against M.D.T. and similarly I have no hesitation in accepting her evidence with respect to the impact the indecent assault had on her. This is an injury which will affect her in a serious way for the rest of her life.
Applicable Legal Principles
[13] M.D.T. was convicted of indecent assault under s.149 of the Criminal Code. At the relevant time, s.149 of the Criminal Code provided as follows:
Everyone who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years.
[14] The principles of sentencing are set out in s.718 of the Criminal Code which provide as follows:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) To denounce unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and
(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victims and to the community.
[15] The case law makes it clear that in the context of cases involving adult sexual predators’ denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing. See R. v. D.D., (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (ONCA).
[16] This position is further reinforced by the provisions of s.718.01 of the Criminal Code which provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[17] Further, s.718.2 of the Criminal Code provides that where a court imposes a sentence, it shall take into consideration, certain principles which include:
(a) Evidence that the offender, in committing the offence, abused a person under the age of 18 years; and,
(b) Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.
[18] The sad reality in this case is that M.D.T. stood in a position of trust, vis a vis his daughter. This trust was grossly violated when he abused her for his own sexual gratification. His daughter had every right to look to the defendant to protect her, but instead he was the individual who inflicted an egregious injury to her.
Mitigating and Aggravating Factors
[19] In considering an appropriate sentence, I have considered the following mitigating factors:
(a) I accept that the defendant is remorseful about his conduct. This is reflected in the apology he extended to his daughter in late 20s and has offered to assist with some therapy. Having said that, M.D.T. does seem to have limited his responsibility for his actions, as noted in the presentence report.
(b) M.D.T. has no other record of any criminal convictions. He appears to have otherwise been a responsible member of his community. He has contributed to his community by way of volunteer activities.
(c) M.D.T. has a number of health concerns. However, as acknowledged during submissions, there is no evidence that his medical conditions cannot be properly managed in a custodial situation.
(d) M.D.T. has the support of his long-time partner, who he met in 2000. According to the presentence report, they now both reside in the same condominium building, but retain separate units. They see each other daily.
[20] Some of the aggravating factors in this case are as follows:
(a) The most serious aggravating factor in this case is the nature of the conduct by M.D.T. in taking advantage of his daughter and committing an egregious indecent assault upon her.
(b) The nature of the assault is exacerbated by the fact that M.D.T. was in a position of trust.
(c) A further aggravating factor is the age of the victim at the time of this incident. She was only 7 to 9 years old.
(d) The impact on the victim has been severe and is likely to affect her for the rest of her life.
Analysis and Decision
[21] The Crown asserts that, in considering the appropriate sentence, I should take into account the fact that in my reasons, I accepted F.T.’s evidence that a second sexual assault occurred in around 1983. The Crown relies on the Ontario Court of Appeal Decision in R. v. Edwards, (2001) 2001 CanLII 24105 (ON CA), 54 O.R. (3d) 737, where the court stated that evidence of uncharged and untried offences is admissible for the limited purpose of showing the background and character of the offender. At paragraph 63, the court states,
In my view, evidence that discloses the commission by the offender of other untried offences is admissible for the purpose of showing the offender’s background and character as that background and character may be relevant to the objectives of sentencing. That being said, the trial judge must have a discretion to refuse to admit the evidence where necessary to ensure that the accused has a fair hearing.
[22] I have concluded that it would be inappropriate for me to take into account my finding that a second sexual assault occurred, as this does not relate to an offence that was “untried”. In fact, the offence alleged was tried and the defendant was found not guilty because of a defect in the indictment.
[23] I accept the defence position that where a charge has been tried and the accused has been found not guilty, the court should not consider the conduct associated with that other charge.
[24] In the Supreme Court of Canada decision in Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] 1 S.C.R. 810, the court comments on the effect of an acquittal. The court states,
There are not different kinds of acquittals and, on that point, I share the view that “as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent of a finding of innocence”…to reach behind the acquittal, to qualify it, is in effect to introduce the verdict of “not proven”, which is not, has never been, and should not be part of our law.
[25] Having found that the defendant is not guilty on Count 2 of the charge, I have concluded that this precludes any consideration of that conduct for purposes of my sentence. It does not matter whether the subject matter of the charge was proven beyond a reasonable doubt, and it was only on the basis of a defect in the indictment that precluded a conviction on this count. To rely on conduct which has been subject of an acquittal as an aggravating factor, would undermine the finding of innocence associated with an acquittal.
[26] Our Court of Appeal has, however, made it very clear that even a single incident of indecent assault, such as the one committed by the defendant in this case merits a custodial sentence.
[27] In R. v. Hutchinson, [2006] O.J. No. 1790, the court dealt with a sentence on the basis of a single act of fellatio admitted to by the appellant in his testimony. In ordering a sentence of fifteen months in addition to the equivalent of seven months presentence custody, the court stated,
Even though the crime involved only a single act of sexual misconduct, it is still a very serious offence. The appellant was in a position of trust. The complainant was very young and because of her troubled home life, particularly vulnerable. A significant period of incarceration was called for. The appellant served the equivalent of seven months presentence custody. Having regard to that seven months, we are satisfied that an additional sentence of fifteen months is appropriate. We would allow the appeal from sentence and vary the sentence imposed to fifteen months.
[28] Similarly the Court of Appeal has expressed its view that evidence of good character is not sufficient to justify a conditional sentence. In R. v. R.W.D, 2005 CanLII 20711 (ON CA), [2005] O.J. No. 2385, the Court of Appeal notes that it is not unusual for individuals who commit this kind of offence to have jobs or to otherwise be individuals of apparent good character. The court states that the trial judge’s determination that this case justified a conditional sentence demonstrated an error in principle.
[29] The Court of Appeal has clearly stated that a custodial sentence is the norm for this type of offence. In R. v. D.R.., 2003 CanLII 9127 (ON CA), [2003] O.J. No. 561, the Ontario Court of Appeal states,
While sentences imposed by sentencing judges attract considerable deference from this court, on the facts of this case, we conclude that the governing principles of denunciation and deterrence, both specific and general, cannot be satisfied by a conditional sentence. This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust.
[30] There is, in my view, nothing in this case which would suggest that it is one of the rare cases which would justify a conditional sentence. The offence itself was egregious. It involved a serious breach of trust of the defendant’s daughter, who was 7 to 9 years old. The level of moral blameworthiness on the part of the defendant is extremely high. A custodial sentence is necessary to denounce the unlawful conduct and to deter others from committing similar offences. None of the mitigating factors convinced me that a deviation from the general requirement for a term of incarceration is indicated.
Conclusion
[31] I accept the Crown’s position and order that the defendant be incarcerated for a period of 18 months to be followed by 2 years of probation. The terms of probation, in addition to the statutory terms as set out in s.732.1(2) of the Criminal Code are as follows:
(a) To report to a probation officer as directed upon his release from custody.
(b) To attend for any assessment, counselling or treatment as directed by the probation officer or conditional sentence supervisor. This includes, but is not limited to an assessment by CAMH through the sexual behaviours clinic;
(c) To sign any release necessary to verify assessment, counselling or treatment as directed;
(d) Not to be alone with anyone under the age of 16 without another adult present;
(e) That he not attempt to communicate with the victim, F.T., nor to come within 200 metres of her residence, place of employment or where she is known to be located, without her prior written consent.
[32] With respect to the custodial sentence, the defendant is entitled to a credit of 47 days, representing his pre-sentence custody of 31 days and a 1.5 day credit for each day served.
Ancillary Orders
[33] The Crown has sought a number of ancillary orders as follows:
(a) Under s.490.012(1) the defendant’s conviction is for a designated offence under s.490.012(1) and an order shall therefore issue under this section of the Criminal Code requiring the defendant to comply with the Sex Offender Information Registration Act. Pursuant to s.490.013(2), the duration of this order is 10 years.
(b) As the offence is designated as a primary designated offence under s.47.04 of the Criminal Code, an order shall issue under s.47.051 for the defendant to provide a sample for DNA analysis.
(c) The Crown seeks an order under ss.161(a), (b) and (c) of the Criminal Code, which would limit the defendant’s entitlement to attend at a public park, to seek any employment that involves being in a position of trust or authority towards persons under the age of 16 years or to have any contact with a person who is under 16 years of age. This order is discretionary. I decline to grant this order for the following reasons:
(i) The defendant has no other criminal record;
(ii) There will be strict limits on the defendant’s ability to be alone with anyone under the age of 16 years, for the time period covered by the terms of probation; and,
(iii) Over 30 years have elapsed since the time of the conduct in question.
(d) The Crown has sought an order under s.110 prohibiting the defendant from possessing any firearm or other weapons, as provided for under that section. I have considered whether such an order is desirable in the interests of the safety of the defendant or any other person. I decline to make such an order for the following reasons:
(i) Other than the offence itself, there is no evidence to suggest any other violence or threats were associated with the offence in question;
(ii) No weapon or threatened use of a weapon was involved in the offence;
(iii) There is no evidence to suggest that the defendant has engaged in any other threatening or violent conduct;
(iv) The defendant is a first time offender; and,
(v) More than 30 years have elapsed since the time of the conduct in question.
(e) The Crown seeks an order under s.743.21 prohibiting the defendant from communicating directly or indirectly with the victim during the custodial period of the sentence. In light of the information received from the victim, F.T., I grant this order, which will apply during the custodial period, subject to the same condition as set out in the terms of probation that is that this prohibition shall not apply if the victim, F.T., provides her previous written consent to the communication.
Mr. Justice M.K. McKelvey
Released in Open Court: February 25, 2016
NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.